Government calls rating ‘vague and elusory’ in filing in closely-watched affirmative-action lawsuit

The lawsuit against Harvard was filed in 2014 by Students for Fair Admissions, a nonprofit whose members include Asian Americans who were denied admission.
Photo:
CODY O'LOUGHLIN for The Wall Street Journal

The U.S. Department of Justice says Harvard University puts Asian-American applicants at a disadvantage through the school’s use of a subjective “personal rating” in the admissions process, according to a new court filing in a federal lawsuit challenging the legality of affirmative action.

The statement of interest filed Thursday by the Justice Department supported the claims made by the plaintiffs, who have sued Harvard for allegedly limiting the number of Asian-American students it admits and holding them to a higher standard than students of other races.

The lawsuit against Harvard was filed in Boston federal court in 2014 by Students for Fair Admissions, a nonprofit whose members include Asian-American students who were denied admission to Harvard. It has become a closely watched battle over how one of the nation’s most selective colleges chooses who gets admitted, and whether the process illegally discriminates on the basis of race.

In criticizing the personal rating, the Justice Department was referring to one component of Harvard’s undergraduate admissions process that evaluates applicants based, in part, on a subjective assessment of character traits.

The plaintiffs have said in earlier court filings that their analysis found Asian-American applicants have the highest academic and extracurricular ratings of any other racial group, but the lowest score on the personal rating, which includes an evaluation of the applicant’s personality. The rating is also based on teacher recommendations, personal essays and admissions interviews, according to Harvard.

Lawyers for the Justice Department said the personal rating reflects racial stereotypes that Asian-American applicants are less “likeable” and hurts their chances of admission despite their higher academic ratings.

“The vague and elusory ‘personal rating’ may be infected with racial bias against Asian Americans,” the Justice Department wrote in the filing.

Harvard has argued its admissions process takes into account ratings on academics, athletics and extracurricular activities, as well as the personal rating. Race is just one of many factors considered, along with socioeconomic background, legacy status and athletic achievement, according to the school.

The government said in the filing that Harvard acknowledged it tends to score Asian-American applicants lower on the personal rating but couldn’t explain why, representing an “intentional and unexplained use of race” in the admissions process. It said the school’s practice defies Supreme Court decisions requiring schools to consider race in a “narrowly tailored” way to achieve diversity.

This is the first time the Department of Justice has weighed in with legal arguments opposing Harvard’s admissions practices, although its stance was not unexpected. The department has been signaling for several months that it was seeking to dismantle longstanding norms in admissions practices and would support Students for Fair Admissions, led by conservative legal activist Edward Blum, in its litigation against Harvard.

Harvard said in a statement Thursday that it was “deeply disappointed” in the Justice Department’s position but that it wasn’t surprising “given the highly irregular investigation the DOJ has engaged in thus far” and the department’s repeal of affirmative-action guidance this summer.

The government said in its court filing Thursday it has a “substantial interest” in the lawsuit’s outcome because it could affect the Justice Department’s investigation, as well as the interpretation and scope of multiple federal anti-discrimination laws.

Harvard says the share of Asian-American students, as well as other minority groups, has fluctuated over the six years reviewed in the lawsuit.
Photo:
Cody O'Loughlin for The Wall Street Journal

Thursday’s filing also echoed the plaintiffs’ other legal arguments, including that Harvard sets racial quotas and has failed to consider race-neutral alternatives.

The Justice Department said Harvard’s “constant monitoring and manipulation” of the racial makeup of its incoming class—at multiple stages of the admissions process—is akin to illegal racial balancing. The Supreme Court has said universities cannot build a freshman class with specified percentage targets for each racial group, but it has allowed universities to consider race as a factor in admissions to obtain the benefits of a diverse student body.

Harvard says the share of Asian-American students, as well as other minority groups, has fluctuated over the six years reviewed in the lawsuit.

Earlier this week, Harvard made its final plea to a federal judge that she could rule in the school’s favor without proceeding to trial, which is scheduled to begin in Boston in October. Harvard’s lawyers reiterated arguments that the plaintiffs relied on flawed analyses of admissions data, and that the school needs to consider race in order to craft a diverse class and achieve its educational objectives.